About Me

Known principally for his weekly political columns and his commentaries on radio and television, Chris Trotter has spent most of his adult life either engaging in or writing about politics. He was the founding editor of The New Zealand Political Review (1992-2005) and in 2007 authored No Left Turn, a political history of New Zealand. Living in Auckland with his wife and daughter, Chris describes himself as an “Old New Zealander” – i.e. someone who remembers what the country was like before Rogernomics. He has created this blog as an archive for his published work and an outlet for his more elegiac musings. It takes its name from Bowalley Road, which runs past the North Otago farm where he spent the first nine years of his life. Enjoy.

Bowalley Road Rules

The blogosphere tends to be a very noisy, and all-too-often a very abusive, place. I intend Bowalley Road to be a much quieter, and certainly a more respectful, place.So, if you wish your comments to survive the moderation process, you will have to follow the Bowalley Road Rules.These are based on two very simple principles:Courtesy and Respect.Comments which are defamatory, vituperative, snide or hurtful will be removed, and the commentators responsible permanently banned.Anonymous comments will not be published. Real names are preferred. If this is not possible, however, commentators are asked to use a consistent pseudonym.Comments which are thoughtful, witty, creative and stimulating will be most welcome, becoming a permanent part of the Bowalley Road discourse.However, I do add this warning. If the blog seems in danger of being over-run by the usual far-Right suspects, I reserve the right to simply disable the Comments function, and will keep it that way until the perpetrators find somewhere more appropriate to vent their collective spleen.

Followers

Tuesday, 4 September 2012

Without Fear Or Favour

Blind Justice: The principle of judicial impartiality is crucial to the survival of an appointed rather than an elected judiciary. The slightest suggestion of class, racial or gender bias in judges' sentencing and the public's tolerance of an appointed judiciary will be severely tested.

JUDGES CANNOT AFFORD to get it wrong. Their speech is
privileged and their judgements have the power to deprive citizens of
everything they hold dear: reputation, wealth, and liberty. They also possess
the power to inflict dreadful harm on persons and communities entirely innocent
of any wrong-doing. Whether it be in passing sentence, or granting bail, judges
have to get it right.

There are two ways of maximising the chances that judges’ decisions
will be right more often that they are wrong. The first is to select them
purely on the basis of their professionalism. To fill the judicial bench
exclusively from among the best, brightest and wisest our legal profession has to offer.

This is our way.

The other way of limiting bad judicial decisions is to hold
judges accountable for their mistakes. To require them to submit the record to
their own judgements to the judgement of their fellow citizens at regular,
local, elections.

This is the American way.

Judicial election, like any political institution, has its
virtues and its defects. A judge required to submit his decisions to the
adjudication of the ballot box must feel under enormous pressure to accurately
reflect the ideals – and prejudices – of his local community.

And if those ideals and prejudices are profoundly and
aggressively racist? The court records of the parishes and counties of
America’s Deep South contain countless examples of black citizens receiving the
most outrageous injustice from the hands of elected judges. These were educated
men, qualified lawyers, who must have known that their judgements traduced
every legal principle they had sworn to uphold. But, they also knew that if
they attempted to uphold the rights of black defendants, then their jobs (and
quite possibly their lives) would be forfeit.

The other problem with electing judges lies in the potential
of local and national power elites to exert undue influence over the electoral
process. In today’s America even judicial elections can turn extremely nasty. A
forthright and honest judge whose decisions have disadvantaged or embarrassed a
local business owner, or (God forbid!) a major US corporation, may find herself
up against a well-funded challenger at the next election. Allegations of
corruption may appear in the local press. The county’s District Attorney (also
elected) may seize the opportunity to improve his own chances of re-election by
launching a full-scale investigation.

On the other hand, the parents of Christie Marceau – the
young Auckland woman allegedly murdered by the man a judge, ignoring the
Police’s strong objections, released on bail – might argue that if that judge’s
high social status and generous remuneration had depended on the local community
retaining confidence in her judicial decisions, then she might have thought
twice about allowing Christie’s alleged assailant to continue living among
them.

This is, of course, what jurists fear most about the
institution of judicial election. That in deference to the vagaries of public
opinion, judges will be willing to set aside time-honoured legal
protections– like the accused’s right
to the presumption of innocence. They fear that a mere accusation, untested in
a court of law, may see an innocent person incarcerated for months – maybe
years. If the judiciary is to deliver anything remotely approaching impartial
justice, it must be independent.
Judges must not be placed in the position of having to look over their
shoulders, tune into talk-back radio, or commission an opinion poll before
rendering their judgements.

Most New Zealanders would, I think, agree that situations
such as this should be avoided.

But, they would also, I believe, agree that the price our
judges must pay for their independence is the strictest impartiality.

Under no circumstances should any member of the judiciary
indicate by word or gesture, and especially not by the severity (or lenience)
of their sentences, that some members of the community can expect to be treated
better, or worse, than some other members. The old expression “without fear or
favour” must be made manifest in every judicial decision.

It is hard to reconcile that principle with the judicial
commentary of Judge Raoul Neave, in sentencing last week the wealthy merchant
banker, Guy Hallwright, convicted of running over and breaking the legs of
Song-jin Kim.

Sir Thomas Noon Talfound wrote:

Fill the seats of
justice

With good men, not so
absolute in goodness

As to forget what
human frailty is.

“Nor,” he might have added, “to overlook their own.”

This essay was
originally published in The Press of
Tuesday, 4 September 2012.

Used to agree with you on this but we have now had too many cock-eyed judgements over the last few years that I now think we should be progressive and try something new, American or not.. Some of our judges seem to be completely out of touch with real life, and some of them appear to be simply, past it. But all their mates will look after them so they just keep on going. The result is a further reduction in general respect for the law, if that was possible.

Meandering a bit too leisurely in this post methinks. Presumably you acknowledge the likes of judicial election would only result in judges being "bought" by the rich and powerful in the same way that politicians are. And that would only lead to more prima facie anomalous decisions like Guy Hallwright's case... what I found so odd about that was the testimony about not realising what he'd done. Surely some human compassion (and some duty you must owe someone if you MIGHT JUST have run them over to go and check and render aid) could have cleared that up, hm?

On the whole, the professional pecking order seems to be a better way of choosing judges than is election.

Even so, the judiciary needs to act broadly in conformity with social consensus, as well as with law and abstract notions of justice. If it fails to do so, the law will simply fall into disrepute.

Three developments are now separating the judiciary from such a consensus.

The first is that we are a less consensual society, in no small part because we are a less equal society. The natural tendency of the judiciary to err in favour of wealth and power is therefore accentuated.

The second is that a chasm has developed between the views of the majority and of a large, educated and influential minorityon a wide range of ethical issues, including how to cope with violent crime.

Judges are part of this minority and seem pre-programmed to resist what they apparently see as majoritarian prejudice. It could, however, be that the Bench is itself in the grip of self-regarding minoritarian prejudice (plus plain old fashioned snobbery).

The third is that our society has become more culturally variegated without this being reflected in the make up of the judiciary. I get the impression that there are many excellent lawyers of East and South Asian and Pasifika origins in New Zealand. But, with a few notable exceptions, they've yet to show up on the Bench.

I can't help wondering how judges born in Taipei, KL, Bangalore or Apia would interpret sentencing policies. But I'm not holding my breath to find out. It'll probably be a long wait.